IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

RSA No. 359 of 2022 Reserved on: 28.8H.2023 Date of Decision: 18.09.2023 Dara Singh alias Rikhi Ram and others ...Appellants Versus Shankari Devi and others ...Respondents Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes.

For the Appellants : Mr. K.D. Sood, Sr. Advocate, with Mr. Het Ram Thakur, Advocate.

For the Respondents : Mr. Sanjay Jaswal, Advocate, for respondents No.1(a) to 1(c) and 2.

Mr. Vijay Bir Singh, Advocate, for respondent No.5.

Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 19.10.2022, passed by learned Additional District

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

Judge-II, Kangra at Dharamshala, vide which the appeal filed by the appellants (defendants before learned Trial Court) was dismissed and the judgment and decree dated 29.11.2017, passed by learned Civil Judge, (Junior Division), Jawali, District Kangra, H.P. was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking possession of the land comprised in Khata N o. 328, Khatauni No. 547, Khasra No. 624, measuring 0- 11-84 hectares, situated in Mauza Suneet, Tehsil Fatehpur, District Kangra, (hereinafter referred as the suit land). It was asserted that the plaintiffs are the owners of the suit land. Bhikho, the predecessor-in-interest of the plaintiffs, was a landless person. The Government allotted the suit land to him in his capacity as a landless person. The plaintiffs used to cultivate the suit land after the death of Bhikho; however, the defendant forcibly took possession of the suit land in September 2000. The defendants filed a civil suit on 15.10.1996 for seeking the specific performance of the agreement. They also filed a correction application in the Court of Tehsildar, Fatehpur. The name of the defendant was entered pursuant to the order passed in the correction application. The civil suit was dismissed by the Court under Order 9 Rule 3 of CPC on 3.11.2001. The possession of the defendants is that of a trespasser; hence, the suit was filed for seeking the relief(s), mentioned above.

3. The suit was opposed by the defendants by filing a written statement, taking preliminary objections regarding lack of maintainability & locus standi, the plaintiffs having not come to the Court with clean hands, improper valuation, suit being barred b y limitation & acquiescence, suit being bad for non- joinder and mis-joinder of parties, and the plaintiffs being estopped by their act and conduct to file the present suit. The contents of the plaint were denied on merits. It was asserted that the defendants have been in continuous and interrupted possession of the suit land since 26.9.1990 and they have become the owners by adverse possession. Bhikho had executed an agreement dated 26.9.1990 in favour of defendant no. 7 and Sahbo, the predecessor-in-interest of defendants no. 1 to 6. Bhikho received the full sale price of ₹ 25,000/-. He delivered the possession to Sahbo and defendant no. 7 on 26.9.1990. The plaintiffs concealed this fact from the Court. A civil suit was filed by Sahbo and defendant no. 7, which was later on dismissed in view of the correction order passed by Tehsildar, Fatehpur. Plaintiffs no. 1 to 6 being the legal heirs of Sahbo are entitled to remain in possession. Therefore, it was prayed that the suit be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues on 28.7.2011:-

h1. Whether plaintiffs are owners of the suit land, as alleged? OPP.

2. Whether the suit land was allotted to predecessor-

in-interest of the plaintiffs Sh. Bhikho S/o Sh.

Gurditt